A prisoner who claims
that a Jewish chaplaincy violated his civil rights by denying him assistance
based on its conclusion that he is not Jewish may sue the group under federal
statutes, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

Overturning a summary
judgment in favor of Congregation Pidyon Shevuyim, N.A., the panel said there
was a triable issue as to whether the group acted on behalf of the state of Washington, with which it has a
contract to provide services to Jewish inmates.

Pidyon Shevuyim is
translated as the ransoming or redeeming of captives, referring to a command in
Jewish law that Jews taken prisoner not be abandoned if their freedom could be
attained at a fair price. The congregation maintains a Seattle-based nonprofit
outreach program called Jewish Prisoners Services International.

Religious Preference

The prisoner, Dennis
Florer, is serving 10 years for stealing a truck from a car dealership in 2003
and running over the salesman, The Associated Press reported. Florer completed
the Washington Department of Corrections religious preference form, designated
himself as Jewish, and requested a kosher diet, a Torah, a Jewish calendar, and
consultation with a rabbi.

His requests were
referred by the prison chaplain to Congregation Pidyon Shevuyim. The group’s
contract with the DOC required it to provide “religious training on essential
Jewish religious practices to Department of Corrections’ offenders who request
this service” and to provide “instruction and assistance with Jewish problems
in all prisons located in WashingtonState.”

The contract also
provides that while all prisoners could attend Jewish services, “the Jewish
authorities will determine who can participate in liturgical related
activities.”

Florer claims that the
denial of his requests by the DOC violated the First Amendment and the
Religious Land Use and Institutionalized Persons Act, which bars the government
from imposing an undue burden on a prisoner’s religious freedom.

He named the
congregation as defendant, saying the DOC acted as it did because the
congregation’s president, Gary Friedman, insisted that Florer was not Jewish.

Friedman, in a 2002
letter to a DOC chaplain that Florer cited as evidence, said that requests for
services from non-Jewish inmates were burdening the chaplaincy and that the
only solution was to limit services to those who “require them as obligations of
their bona fide faiths.”

Friedman further offered
to assist the department if it had “difficulty in determining which inmates are
Jewish” according to traditional Jewish law, which requires that one be born to
a Jewish mother or formally converted in order to be considered a member of the
faith. That view is not universal, as some within Judaism recognize as Jewish a
person whose father is Jewish but whose mother is not, or who has undergone
conversion outside of the Orthodox tradition, to which Congregation Pidyon
Shevuyim adheres.

Subsequent to the
receipt of Friedman’s letter, Florer said in his complaint, the DOC initiated a
policy of denying religious materials to inmates who did not have the approval
of the chaplaincy of the particular faith they were claiming. Florer received a
questionnaire from Friedman regarding the bona fides of his claim to be Jewish,
but did not complete it.

Summary Judgment

In granting summary
judgment in favor of the congregation, U.S. District Judge Ricardo Martinez of
the Western District of Washington ruled that the congregation could not be
sued under the civil rights statutes because it was acting privately, rather
than on behalf of the state.

Judge Ronald Gould,
emphasizing that the appellate panel was ruling only on the state-action issue,
said Florer presented enough evidence to take that question to trial. He
explained in a footnote that while the congregation raised other grounds in
favor of dismissal, the panel declined to rule on them because the district
judge did not treat them as dispositive.

Gould explained that if
the state contracts with a private party to meet the state’s legal obligations,
the private property acts under color of state law. He cited cases in which the
Sixth Circuit allowed a prisoner to sue a volunteer chaplain who barred him
from attending chapel because the prisoner was gay, and in which the Supreme
Court allowed suit against a private physician who treated a prisoner under
contract with the prison system.

“Likewise,
Congregation’s role in determining which prisoners were Jewish, according to
Congregation’s religious beliefs, arose through its contract with the DOC,” the
appellate jurist explained. “Although the mere fact of a contract with the DOC
does not create state action in a contracting party, here the substance of the
agreement placed critical responsibilities to facilitate the free exercise of
religion by inmates upon Congregation.”